CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

     Udyog Sadan, C – 22 & 23, Institutional Area

         (Behind Qutub Hotel)

New Delhi – 110016

    Case No.92/2021

1. Rajib Sen Gupta

Son of Late Sh. D.N. Sen Gupta

327, Aravali Apartments

New Delhi-19.

2. Jayita Sen Gupta

Wife of Late Sh. Rajarshi Sen Gupta

327, Aravali Apartments

New Delhi-19.…..COMPLAINANT

Vs.

                      Emergent Builders Pvt. Ltd.

Having its registered office at

WZ-26, Naraina

South West Delhi

Delhi-28

Through its Managing Director

Also at Corporate Office:

A-502, Suncity Business Tower

DLF Golf Course Road

Sector-54, Gurgaon.                                  …..RESPONDENTS

Date of Institution-18.03.2021

Date of Order-22.12.2023

    O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency of service on the part of OP in non-delivery of a plot/ farmhouse land by complainant to OP.

2. The complainant booked a residential plot/farmhouse land bearing plot No.39 admeasuring one acre on representation made by OP.  He was quoted a sales price of Rs.37,50,000/- and was given a discount of Rs.12,00,000/-.  The agreed fixed sale price was Rs.25,50,000/-. 

3. The complainant signed an application for allotment dated 07.03.2012.  He received a welcome letter, proposed layout of plot, master plan and payment schedule on the same day.

4.  A Buyer’s Agreement between the parties was executed on 04.06.2012. As per the Agreement, the possession was to be handed over within 15 months from the date of agreement.  OP also promised to pay Rs.10,000/-per month. if there was any delay in handing over the plot.

5. The complainant made a down payment of Rs.24,00,000/-, the details of which are as follow:

6. OP failed to hand over the possession despite repeated follow up. It is alleged that possession was not handed over after the expiry of due date on 06.09.2013 as per the Agreement. The complainant visited the site in 2014 and found there was no development even after three years of launch of the project.

7. There was a series of exchanges between the parties. The complainant received correspondence in the form of a letter dated 31.3.2016 and an email dated 4.4.2016, which informed them about an existing legal dispute related to the plot of land adjacent to the one allocated to the complainant. In reaction to this update, the complainant, on 7.4.2016, sent an email requesting a refund.

8. OP vide email dated 13.4.2017 demanded an amount of Rs.49,50,000/- even though the plot in question was sold a cost of Rs.25,50,000/- and the complainant had paid 94% of the total payment.

9. The complainant prays for refund of Rs.24,00,000/- with 18% interest, a compensation of Rs.20,00,000/- and to declare the contract dated 4.6.2012 null and void
10. OP in its reply states that Greenwood Acres, Pawta, Rajasthan was one of the best locations of farm land plots in Jaipur District of Rajasthan and is situated close to National Highway No.8. OP submits that the whole area is fully developed with proper connecting roads and greenery.  It is submitted that the complainant’s plot is ready for delivery. It would be handed over after payment of the remaining amount.  It is further submitted that other people who had booked these farm/plot have already taken possession. 

11. OP has admitted that the complainant was allotted one-acre, super area for Rs.25,50,000/-. OP has also agreed that a discount of Rs.12,00,000/- was provided to the complainant.  OP has also agreed receiving Rs.24,00,000/- from the complainant.

12. OP has not denied the emails exchanged between the parties.  OP is ready to hand over the possession on payment of remaining amount as demanded. OP further submits that the pending litigation with respect to disputed properties have been settled.

13. OP has relied on Clause 27 of Buyer’s Agreement and raised a preliminary objection on territorial jurisdiction of this commission.

14. Complainant has filed his rejoinder reiterating the averment made in the complaint.  It is submitted that OP has demanded Rs.24,00,000/- more as extortion money over and above the agreed sale price. 

15. The complainant submitted evidence by way of affidavit and exhibited the following documents as under :

1. A copy of application for allotment dated 07.03.2012 is exhibited as Exhibit-C/1.
2. A copy of cheque dated 12.3.2012 for Rs.5,00,000/- and cheque dated 07.03.2012 for Rs.1,00,000/- is exhibited as Exhibit-C/2.
3. A copy of allotment letter and welcome letter by OP is exhibited as Exhibit-C/3.
4. A copy of Buyer’s Agreement is exhibited as Exhibit-C/4.
5. A copy of receipt dated 12.03.2012 and cheque No.938155 dated 10.04.2012 is exhibited as Exhibit-C/5.
6. A copy of email dated 8.12.2014 and 15.12.2014 is exhibited as Exhibit-C/6.
7. A copy of email dated 05.02.2016 is exhibited as Exhibit-C/7.
8. A copy of the undated letter along with tracking report and a copy of email dated 04.4.2016 is exhibited as Exhibit-C/8.
9. A copy of email dated 07.4.2016 is exhibited as Exhibit-C/9.
10. A copy of email dated 10.4.2017 is exhibited as Exhibit-C/10.
11. A copy of email dated 13.4.2017 is exhibited as Exhibit-C/11.
12. A copy of email dated 17.4.2017 is exhibited as Exhibit-C/12.
13. A copy of email dated 16.8.2017 and 21.8.2017 is exhibited as Exhibit-C/13.
14. A copy of email dated 18.6.2019 is exhibited as Exhibit-C/14.
15. A copy of email dated 04.2.2020 and reply dated 13.2.2020 is exhibited as Exhibit-C/15.
16. A copy of legal notice and postal receipts are exhibited as Exhibit-C/16.
17. A copy of email dated 28.3.2020 is exhibited as Exhibit-C/17.

16. OP submitted evidence by way of affidavit as under :

1. Copies of Greenwood Acres are exhibited as Exhibit-OPW1/1.
2. A copy of email dated 13.2.2020 is exhibited as Exhibit-OPW1/2.
3. A copy of email dated 21.8.2017 is exhibited as Exhibit-OPW1/3.

17. The Commission has perused the pleadings and material on record.  It is admitted by both the parties that the complainant has booked a residential plot/farm house for Rs.25,50,000/- and OP has received Rs.24,00,000/- till date from the complainant in respect of the aforesaid plot.

18. The application for allotment dated 07.3.2012 admitted by both the parties shows that complainant had applied for provisional allotment of a plot in Greenwood Acres Complex, situated at Sitapur, Virat Nagar, Rajasthan on payment of Rs.6,00,000/-.  A letter dated 7.3.2012 by OP to complainant mentioned that complainant has been allotted a Farm Plot bearing Number 39 admeasuring 1 Acre (4046.85 sq.mtr) Super Area in the said development @Rs.25,50,000/- per acre (Rs.630.12 per sq mtr.) .  The said letter also states that Rs.6,00,000/- was also received from the complainant. The said letter is accompanied by a schedule of payment which is as follows:

19. The Builder Buyer’s agreement dated 04.6.2012 is admitted by both the parties. The relevant portion is as follows:

“The first party shall make all efforts to hand over the possession of the proposed Plot within 15 months from the date of signing of the Buyer’s Agreement, subject to such indicators as be provided in this Buyer’s Agreement and the timely compliance of the provision of this Buyer’s Agreement by the Second Party. The opposite party agrees and understands that the First party shall be entitled to a grace period of ninety (90) days, after the expiry of 15 months for handing over the said possession in respect of the said plot.

20. The complainant has sent an email dated 08.12.2014 to OP.  Relevant portion is as follows :
21.  

In coming future of even 10 years, not(sic) cultivation is possible and it looks like a desert.

Regarding my Farm, bearing no.39 no one could show me the place as per your plan.There should have been roads on three sides of my Farm.These were missing.No one could tell us which one can be Farm No.39.

I don’t think you are in a position to give possession even within one year, because there is no development even after 3 years of launching the project.”

21. The complainant sent similar emails to OP on 15.12.2014 and 05.02.2016.

22. OP vide an undated letter replied to the said email of the complainant.

We acknowledge thatwe have been unable to hand over possession of the said allotted plot along with the boundary wall to you till date and can understand your anxiety in this regard however the delay in handing over thepossession and construction of the boundary wall is due to genuine reasons and circumstances that our beyond our reach.

A civil matter has been initiated against us with regard to the plot of land situated adjacent to the plot allotted to you on the main road.The case is pending adjudication in the court of Rajasva Mandal Rajasthan (Ajmer) bearing Appeal No.3991 of 2015.The Hon’ble Court has issued status quo stay order stating that no work shall be done on the suit property until further notice of the court.”

23. The complainant vide email dated 07.04.2016 communicated to OP to refund the amount.  The relevant portion is as follows: 

24. The complainant sent similar email asking for refund on 10.04.2017.   OP vide email dated 13.04.2017 informed the complainant that they are ready to register the land subject to the payment of remaining amount. The relevant portion is as follows: 

Total value of the land is 49,50,000/-

Amount Received in Cheque:12,00,000/-

Amount received in colour (sic):12,00.000/-

(Kindly make a cheque in favour of “Emergent Builders Pvt. Ltd.” for an amount of 12,50,000) balance 13,00,000 you can pay in color (sic).

Total Registry amount is

(as per the circle rate) 24,50,000 X 9.5%=2,32,750/-(for stamp paper, document writing fee, tehsildar fee, court fee etc.)

For mutation: 25,000

Extra Charges:10,000

Total amount:2,67,750 in cash or in case or cheque (Kindly make a cheque in favour of “GWA Services”).

25. The complainant vide email dated 17.04.2017, 16.08.2017, 24.08.2017, 28.06.2019, 04.02.2020, 13.02.2020 requested for refund.  The complainant also sent a legal notice dated 29.02.2020. 

26. OP vide email dated 21.08.2017 and 13.02.2020 requested the complainant to register the plot.
27. In the present case, both parties acknowledge that the complainant booked a residential plot/farmhouse with OP on 07.03.2012 and made a payment of Rs. 24,00,000.00 by 10.04.2012. The Builder-Buyer Agreement was executed on 04.6.2012, stipulating a net cost of Rs 25,50,000/- for the plot. According to the agreement terms, the plot was scheduled to be handed over by 04.09.2013 (within 15 months), with a grace period extending to 04.12.2013 (90 days). However, OP's email indicates that the plot's development was impeded due to pending litigation. Commencing on 08.12.2014, the complainant initiated refund requests from OP, conveying numerous emails for the same purpose.

28. In an email dated 13.04.2017, OP offered the complainant possession at a revised cost of Rs 49,50,000/-. Notably, OP unilaterally increased the sale price from Rs 25,50,000 to Rs 49,50,000/- without any prior notification.

29. It is evident that there was a substantial delay in offering possession. Moreover, OP has not provided any clarification to this Commission regarding the nature of the pending litigation. Penalizing the complainant by deferring possession is unwarranted under these circumstances.

30. Hon’ble Supreme Court in Kolkata West International City Pvt.Ltd V/s Devasis Rudra, I(2019)CPJ29(SC) Supreme Court of India. 

“10.  The essential aspect of the case which is required to be analysed is whether the buyer was entitled to seek a refund or was estopped from doing so, having claimed compensation as the primary relief in the consumer complaint.  The Buyer’s Agreement is dated 2 July,2007.  In terms of the agreement, the date for handing over possession was 31 December,2008 with a grace period of six months.  Even in 2011, when the buyer filed a consumer complaint, he was ready and willing to accept possession.  It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession.  By 2016, nearly seven years had elapsed from the date of the agreement.  Even according to the developer, the completion certificate was received on 29 March, 2016:  This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period.  A period of seven years is beyond what is reasonable.  Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC.  There was in any event a prayer for refund

31. Hon’ble Supreme Court of India in Civil Appeal No.12238 of 2018 (Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan), decided on 02.04.2019, wherein it was held as under:-
    
    9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant  Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent  Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired.

32. Now we will deal with the objection regarding territorial jurisdiction of this Commission. It may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In this case, it is clearly evident that the agreement dated 04.06.2012 in respect of the plot in question has been executed between the parties at Delhi. The complainant resides in Alaknanda, Delhi, which is within the territorial jurisdiction of this Commission. As such, objection taken with regard to territorial jurisdiction stands rejected.

33. Hence, we find OP guilty of unfair trade practice in unilaterally increasing the sale price by Rs.24,00,000/- and deficiency in service in offering possession of the plot in question after considerable delay. We, therefore, direct OP:

1. To refund Rs.24,00,000/- along with 9% interest from date of deposit to realization.
2. To pay Rs.30,000/- as compensation for mental harassment.
3. To pay Rs.10,000/- as litigation expenses.

34. File to be consigned to record room.  Orders to be complied within 30 days of the date of order